Arrests, convictions but no DNA sample

Despite a lengthy criminal record, man who is now implicated in 2003 double murder wasn't tested

By BRENDAN J. LYONS Senior writer

Published 1:00 am, Sunday, June 27, 2010

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Michael J. Mosley, 40, of North Greenbush

Michael J. Mosley, 40, of North Greenbush

Arrests, convictions but no DNA sample

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TROY -- An Averill Park man who has been implicated by DNA in the 2003 murder of a Troy couple managed to avoid detection as a suspect for years despite repeated arrests and probation violations that could have triggered collection of his DNA sample.

The result, arguably, is that two men whose lawyers said were wrongly indicted for the murders might never have been charged in a case that was built largely on the word of jailhouse informants and others with criminal records.

Rensselaer County District Attorney Richard McNally conceded in an interview last week that authorities may have repeatedly missed opportunities to compel a DNA test from 40-year-old Michael J. Mosley, whose convictions over the last eight years include felony counts of assault, DWI and aggravated unlicensed operation of a motor vehicle.

The best chance to collect a swab from Mosley came in June 2006 when New York lawmakers expanded the state's DNA testing to retroactively include crimes for thousands of felons who were still serving their sentences, including on parole and probation.

"What I'm pretty sure of is that he was serving a sentence in 2006 for a DNA-eligible offense and that somehow wasn't entered into the system or entered onto his criminal history so that he at least owed the DNA," McNally said.

Still, criminal court records in two counties leave unclear whether Mosley's crimes and convictions should have triggered a DNA test sooner than last December. That's when a swab from inside Mosley's mouth was taken and submitted to a State Police crime lab, at the request of Rensselaer County prosecutors, after Mosley pleaded guilty in North Greenbush Town Court to a misdemeanor assault charge for punching his girlfriend in the face.

Two months later, McNally's office received word that Mosley's DNA was consistent with a blood smear found at the scene of the Jan. 25, 2002, murders of Arica Lynn Schneider, 18, and her drug-dealer boyfriend, Samuel "Frost" Holley, 27. The discovery turned the long-running investigation in a new direction, and Mosley was arrested June 14 and charged with two counts of murder.

Authorities say that if Mosley's DNA had been taken four years ago it may have prevented the indictment of Terrence Battiste and Bryan Berry, who were at one point threatened by federal prosecutors with the death penalty in an effort to get them to confess, said Berry's attorney, Fred Rench of Clifton Park.

Battiste and Berry remain jailed and are awaiting trial for the murders. But their attorneys said prosecutors have said the indictment may be dismissed, barring some unknown connection between the pair and Mosley.

Robert Knightly, an Albany attorney and former New York City Police Department lieutenant, was assigned to represent Mosley as a public defender. Knightly said his client "strenuously maintains his innocence."

"His mother, (girlfriend) and children are 100 percent behind him believing in his innocence," Knightly said. "The only link of Mosley to this case is DNA evidence. In my experience DNA evidence is only as reliable as the tester ... in this case the New York State Police lab. They have not exactly covered themselves in glory recently and scandal has surrounded their trace-evidence unit that was found to be unreliable."

Mosley's criminal history stretches back at least 22 years and paints a portrait of the former star wrestler from Bethlehem High School as a violent felon who has been in and out of jails for offenses ranging from arson and burglary to felony assault and DWI.

Military records show Mosley, who was born and raised in the Albany area, enlisted in the U.S. Army shortly after graduating from high school in 1988. But two years later, as a private first class, Mosley was charged with "housebreaking," arson and disobeying an order for setting fire to a military residene at the former Fort Ord, Calif., base.

Mosley was court-martialed, dishonorably discharged and spent four years and 10 months in a military prison at Fort Leavenworth, Kan.

Under standard practice, Mosley's military crimes were not included in his record eight years ago when he turned himself into Saratoga Springs police for the violent assault of a man outside a Caroline Street bar.

It's unclear whether Mosley's Army crimes, if known, would have altered the posture of prosecutors in that case, who settled on a plea that kept Mosley out of prison.

Mosley later pleaded guilty to attempted second-degree assault, a felony, and admitted smashing a beer bottle over a man's head and beating him after the victim fell unconscious onto a sidewalk. The victim remained in a coma for days and underwent physical therapy for his injuries, which included a skull fracture and memory loss, court records show.

"There was a distinctive pop that a bottle makes when it hits somebody across the head," a cabdriver, John Vukas, later told a grand jury as he described the assault.

A couple of weeks after the assault, which took place while Mosley was on probation for a DWI conviction in Clifton Park in 2002, he was arrested in Wilton for driving drunk. At the time, Mosley had not yet been charged with the unrelated assault.

Two troopers who ticketed Mosley for swerving and speeding on Route 9 in Wilton also charged him with resisting arrest when he bolted from the traffic stop and was tackled in nearby woods. His blood alcohol reading was 0.13 percent.

The arrests, and Mosley's presence in a bar and drinking alcohol, were violations of his probation at the time of the September 2003 incidents. Law enforcement authorities could have demanded Mosley's DNA be taken as a condition of probation but they did not.

The assault case and the DWI arrest in Wilton were under investigation by a Saratoga County grand jury in January 2003 when Schneider and Holley were knifed to death in their Brunswick Road apartment. They were slain by someone who used a steak knife from the couple's small kitchen.

Mosley listed an address in Ballston Spa at the time of the murders but had ties to Rensselaer County, where his children reside. His name never surfaced as a suspect. Instead, Troy police, the FBI and prosecutors began building a murder case against Berry and Battiste, who were part of a crew that was robbing area drug dealers at gunpoint around the time the couple were killed.

There is no physical evidence tying Berry and Battiste to the murders. The blood of an unknown suspect -- allegedly Mosley's -- was found on the underside of a mattress in the couple's apartment and logged in police records as "John Doe No. 1."

Five days after the murders Mosley was indicted in Saratoga County for resisting arrest, a misdemeanor, and felony counts of DWI and aggravated unlicensed operation of a motor vehicle stemming from the arrest by troopers. A second indictment was handed up two weeks later charging him with felony assault for the street fight.

In October 2003 Mosley, while out on bail, Mosley pleaded guilty to attempted felony assault and DWI. He was sentenced concurrently to six years in jail and five years of probation. At the time the crimes did not require him to submit a DNA sample, but it could have been imposed as a condition of his sentence had prosecutors asked.

Mosley didn't fare well on probation. In November 2004, eight months after he was released from Saratoga County jail, probation officers obtained a warrant for his arrest after learning Mosley had been arrested in Rensselaer County on charges of felony DWI (his third arrest for driving drunk), aggravated unlicensed operation of a motor vehicle, vehicular assault and leaving the scene of an accident.

Mosley pleaded guilty to reduced charges in Rensselaer County Court and was sentenced to about a year in jail. Again, a DNA sample was not collected and it's unclear whether it should have been.

McNally, who was sworn in as Rensselaer County district attorney in January 2008, called Mosley's case "a great example" of why DNA testing should be conducted on anyone arrested for a crime.

"At least this would have been out before the case (against Berry and Battiste) was indicted," he said. "It wasn't done. I think it was a systemic problem in keeping track of these things."

Brendan J. Lyons can be reached at 454-5547 or by e-mail at blyons@timesunion.com.